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About That “Stairway to Heaven” Copyright Infringement Claim

The lawsuit filed against Led Zeppelin (May 31, 2014, U.S. District Court in Pennsylvania) by the estate of the late Randy California (of West Coast art rock band, Spirit) – forty-something years later – alleges that Led Zeppelin stole the iconic guitar figure and chord progression that opens “Stairway to Heaven” from a Spirit song written by California (né Randy Wolfe) called “Taurus”. Here, listen for yourself: “Taurus”; “Stairway”.

staircaseTo prevail, California’s estate must prove that Zep copied the prior work and that there is a substantial similarity between the two songs. Copying may be proved circumstantially based on evidence of access and similarity, and there’s an inverse relationship between the amount of access and similarity required: the more access, the less similarity needs to be shown. Similarly, the more similarity exists, the less access must be shown. “Stairway” was first recorded in 1970, and it’s well-documented that Zep had access to “Taurus” through Spirit’s live set, as the bands often performed together in the late-60s. In addition to copying, “substantial similarity” must be shown. “Substantial” means the copying is substantial in degree, as measured qualitatively or qualitatively. “Similar” means that the copy sounds similar to the ears of an ordinary member of the listening audience. Yes, in both songs there is a slow, descending chromatic melody against a common chord progression through the first four measures of each, though the Spirit tune is harmonized very differently from Zeppelin’s, and the guitar phrase in “Stairway” has an elegance lacking in “Taurus”. Yes, there are definite similarities but are they “substantial”?

The Zep can be expected to defend the suit by asserting that there is nothing original, and therefore nothing “copyrightable”, in the Spirit song. The opening melody and chord progression are not particularly unique. In fact, anyone who plays a standard tuned guitar sees the ease with which this progression and melody falls beneath the fingers. Further, while there are clear similarities between “Taurus” and “Stairway” (same key, same basic tempo, same chord progression – except for the final bar, which could even be considered the hook to “Stairway” – and same arpeggiated guitar style), there are also distinct differences in the bass and treble melodies. Another expected defense is Fair Use, and Led Zep would argue that it has transformed the original and created something new. We’ve seen the boundaries of the Fair Use doctrine expand and it could certainly be used to encompass “Stairway”.

(Another, more likely, source for the opening figure in “Stairway” is Davy Graham’s “Cry Me A River”, which to these ears sounds a lot closer to Zep’s version.)

So, a lawsuit forty-something years later? On May 19, 2014, the Supreme Court entered its decision in Patrella v. Metro-Goldwyn-Mayer, Inc., et al., holding that the equitable defense of laches (which prevents a party from “sleeping on his rights”, only to surface later, yet prior to the expiration of an applicable statute of limitation) cannot trump the congressionally-mandated statute of limitation. The statute of limitation in copyright cases is three years, and each publication of the infringing material commences a new statutory time period. Now, the damages that may be claimed are only those that arose during the three years before the suit is filed (which, for a song as ubiquitous as “Stairway”, is still a lot of money), but the successful plaintiff can bar future use of the song unless the plaintiff is compensated. Led Zeppelin is on the verge of releasing a new version of Led Zeppelin IV, the album containing “Stairway to Heaven”. The California estate could see some hefty royalties from future sales.

This won’t be Zep’s first rodeo with an infringement claim; it has settled at least four prior claims (involving songs on the first two, heavily blues-based albums). If Led Zeppelin prevails against California’s estate on the basis of lack of originality or even Fair Use, then I’m confident that Cousin Billy’s “Stairway to Billy” is similarly protected from any claims Led Zep may make against the Cousins. While Led Zeppelin apparently has strong defenses, the betting money goes with a settlement before this suit gets to trial, and maybe even before it gets filed.

As an aside, the Randy California estate attorney, Francis Alexander Malofiy, may not live to see this case through – professionally-speaking, that is. In an unrelated case where Malofiy represents a plaintiff claiming copyright infringement against Usher and others, a district court judge has recently taken him to task for highly unprofessional conduct in that case.  The judge sanctioned Malofiy, after finding that he (1) inveigled an inculpatory affidavit from an unrepresented defendant and (2) after falsely assuring the defendant that he was only a witness, entered a default against him. The court awarded attorneys’ fees and referred the matter to the chief judge of the district for further proceedings.

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